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Civil Rights, Equal Opportunity, and Discrimination

Justice Brown's opinions on civil rights law are perhaps the most troubling area of a very troubling body of work. These opinions reveal significant skepticism about the existence and impact of discrimination and demonstrate repeated efforts to limit the avenues available to victims of discrimination to obtain justice. Brown's opinions in this area reveal a troubling disregard for precedent and stare decisis - even in the context of case law that has been settled by the U.S. Supreme Court.

For example, in a race discrimination lawsuit, Brown dissented from the majority opinion upholding an injunction against an employee from using racial slurs in the workplace and against an employer for allowing them. Brown argued that racially discriminatory speech in the workplace, even when it rises to the level of illegal race discrimination, is protected by the First Amendment and cannot be limited. In coming to this conclusion, Brown downplayed the fact that several U.S. Supreme Court opinions have found exactly the opposite - the Court has made clear that speech can and does constitute illegal race discrimination in some cases. Brown also argued that even if such speech is racial discrimination, it cannot be limited by an injunction aimed at preventing a recurrence of the discrimination.

Brown's opinion, if it were to become the law of the land, could make it impossible for judges or legislators to take effective steps to halt the recurrence of sexual harassment and racial discrimination involving speech in the workplace. In fact, Brown went so far as to suggest that the landmark civil rights law, Title VII of the Civil Rights Act of 1964 (which prohibits discrimination in employment), could be partly unconstitutional under the First Amendment. 980 P.2d at 892

In Hi-Voltage Wire Works v. City of San Jose, Brown authored a majority decision that makes it extremely difficult to conduct any sort of meaningful affirmative action program in California. Justice Brown's opinion in the Hi-Voltage case was seen as likely to negatively impact affirmative action programs across the country, and was criticized by many as going too far, even after the passage of California's anti-affirmative action ballot measure, Proposition 209. For example, a San Francisco Chronicle editorial stated that Brown's opinion was an "overreaction to the intent of Prop. 209 and misreads the desire of many voters who wanted to uphold equal rights or merely end racial quotas....To compare affirmative action to laws designed to promote segregation, as Justice Brown's analysis does, is absurd." "The State Supreme Court Blunders on Prop. 209," editorial, San Francisco Chronicle, 12/4/2000, p. A22.

In one case, Brown dissented in order to make clear that she would limit the avenues available to people with disabilities to sue for employment discrimination. City of Moorpark v. Superior Court, 959 P.2d 752 (Cal. 1998). And in another case, her dissent included the following highly questionable assertion: "Discrimination based on age is not, however, like race and sex discrimination. It does not mark its victim with a 'stigma of inferiority and second class citizenship' (citations omitted); it is the unavoidable consequence of that universal leveler: time." 941 P.2d at 1187